By: David French – nationalreview.com – June 5, 2018
A day after the Masterpiece Cakeshop decision, I find myself in an uncomfortable position on two counts. First, I’m more optimistic and pleased than I was yesterday (I’m far more comfortable with cynicism). And, second, I find myself disagreeing with some of the smartest folks in conservatism. Andrew McCarthy has an essay up today on our homepage arguing that Masterpiece is a setback for liberty. At the Daily Wire, Ben Shapiro says that religious Americans “should still be very worried.” In First Things, Williams College professor Darel Paul goes so far as to say that “Only profound naïveté can spin the majority decision as a victory for religious liberty.”
Wow. Strong words.
The primary common thread in these critiques is the concern that Justice Kennedy merely granted a stay of execution. Run the same case through a process cleansed of overt anti-religious bigotry and clear double standards, and the axe will fall. Here’s Andy:
In essence, Phillips won because the oxymoronic Colorado Civil Rights Commission was mean to him. The Court does not say how the commission should have decided the matter; it merely admonishes that, in future hearings, the commissioners must avoid being so indecorous, so overt in their hostility to unreconstructed Christians. Silent, smiling contempt is de rigueur: In the next case, just patiently hear out the baker, politely rule against him, and move on — no more grandstanding about how much religion sucks.
Professor Paul sounds a similar alarm:
Colorado has no state-level Religious Freedom Restoration Act. In light of the failure of a proposed state RFRA to pass the state House of Representatives in each of the past three years, the chances of Phillips’s being allowed to persist in his practices is slim. The Masterpiece Cakeshop decision is not a win for religious liberty in America. As Justice Clarence Thomas notes, it is not even a comment on freedom of speech, which went wholly ignored in the majority opinion. Absent changes to the composition of the Court, the most plausible reading of the Masterpiece Cakeshop decision is as a harbinger of defeat.
And he may well be right. It may well be the case that the next time SCOTUS considers the issue, it will do so with a “cleaner” record and compel creative professionals to use their artistic talents to help celebrate an event they find profane and unholy. But I’m less convinced, and I’m feeling better about the free-speech argument today than I did yesterday. There are six reasons why:
First, Jack Phillips avoided disaster. As Winston Churchill said, “Nothing in life is so exhilarating as to be shot at without result.” Going into the oral argument, the smart money said that Phillips faced an uphill climb. I talked to multiple constitutional litigators who were desperately afraid of the case. They didn’t like Jack’s case, and — at the very least — they wanted to bring a different challenge at a different time, when Kennedy was off the Court. To turn what was predicted to be a likely loss on the case’s core question into a 7-2 victory upholding free exercise in the face of anti-Christian bigotry is a simply delightful result.
Second, to those who are convinced that Kennedy would rule differently in the absence of anti-religious animus, why didn’t he do so in this case? He didn’t have to decide the case on free-exercise grounds. In fact, of all the justices, he’s one of the least likely to avoid the smaller decision in the quest for the bigger statement. Remember, this is the author of Obergefell we’re talking about.
Third, it may not be as easy to present the clean case as you think. Remember, many of these cases come out of state civil-rights commissions that are highly ideological and often outright hackish. They’re undisciplined and biased as a matter of course, and as much as they may try to be more rigorous in the future, they can’t do anything about the past. Religious-liberty attorneys are hunting through the records of other cases for similar statements. Don’t be surprised if they like what they find.
Fourth, even if you present the clean case, other plaintiffs have better First Amendment claims than Phillips. It was clear from his opinion that Kennedy intends to evaluate free-speech claims on their specific facts, and many of the cases in the pipeline are more favorable on the facts than the Masterpiece case. Just as I spoke to conservative constitutional litigators who didn’t like Jack’s case, there are progressive litigators who liked it very much and wanted this to be the case the court decided.
Fifth, depending on Kennedy’s retirement plans, it’s highly likely that the next version of the case will be decided by a different Supreme Court. If Trump can appoint Gorsuch 2.0 (or even someone with half his horsepower), then the “bullet dodged” becomes “victory delayed.”
Finally, Kennedy did give people of faith a lasting gift. He rebuked one of the more common and vicious leftist talking points — the claim that “religious liberty” is a mere pretext for bigotry. Responding to a Colorado commissioner’s argument that Phillips’s religious liberty claims were a “despicable piece of rhetoric” — similar to arguments used to justify slavery and the Holocaust — Kennedy said this:
To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical — something insubstantial and even insincere.
In the future, when members of the media put “religious liberty” in scare quotes, when academics pontificate about past injustice, and when government officials echo their slurs, conservatives should remind them of Kennedy’s words. They’re not defending liberty. They’re disparaging religion. And, in certain circumstances, government officials are even breaking the law.
Dodging a constitutional bullet? Laying a minefield for activist ideologues? Paving the way for a better case before a potentially better court? Rebutting a common progressive talking point? Not bad for a day’s work at the Supreme Court. Yes, the killjoys may ultimately be proven right. Masterpiece Cakeshop may be a prelude to a disaster, but for now I’ll remain optimistic. The future of free speech at the Supreme Court is so bright, I have to wear shades.
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